Saturday, 16 February 2013

RONALD DWORKIN: THE LOST INDEPENDENT OBITUARY

NOTE: Due to circumstances beyond my control, the Independent double-booked the assignment to write the obit of Ronald Dworkin, the legal philosopher and one of my favourite writers in the New York Review of Books. Mine was the later assigned, and filed, so though I rushed to complete about 1,000 words in a couple of hours while watching two kids on half-term break, it went unused. I offer it here, as written and not edited by the paper. The one the paper used is good, and explains more fully than I try to the nature of Dworkin's philosphy, and the ones it argues against. It wasn't for me to insert myself into the obit, but it is my feeling that the legal profession in general prefers the HLA Hart approach to the law, as a sort of chess game taking place divorced from the 'real' world, and within the cheesboard of the courtroom. It avoids having to question one's own actions, and fall back on the zero-sum game theory of the adversarial approach, where winning is the goal, not justice. I can also recommend Godfrey Hodgson's excellent obit in the Guardian, a more personal reminiscence--and certainly the Gatsby-esque photo on the beach goes along with the best three-house arrangement I could think of.

RONALD DWORKIN: LEGAL MORALIST

Ronald Dworkin, who has
died aged 81, was one of the world's foremost legal philosophers, and
a forceful advocate for using morality to interpret issues of
constitutional law. He was a leading scholar of constitutional law as
a professor in both Britain and the United States, but he exerted
equal influence in the wider world with his commentary on political
issues and philosophy, most notably in the pages of the New York
Review of Books, where his essays flowed like lectures, taking his
audience along for an illuminating ride.

His legal philosophy
was challenged most heavily from the political right, and he became a
particular target when he opposed President Ronald Reagan's
appointment to the Supreme Court of his former Yale colleague Robert
Bork, with whom he had taught jointly a course in constitutional law.
He based his opposition on Bork's strict constructionist approach,
which he called a refusal to 'test interpretation of the
Constitiution against the principles latent in (the Supreme Court)'s
own past decisions.' Believing the framers of the Constitution had
imbued it with room for moral interpretation, Dworkin often found
such strict interpretations hypocritical, or in the case of the
Supreme Court's 2000 decision to 'acclaim' George W Bush president,
an exercise in 'professional self interest'. He wrote 'the fiat of
the five conservative justices...stopped the deomocratic process in
its tracks.'

Dworkin's work for the
New York Review stretched from a trenchant analysis of affirmative
action through the 2000 election and to the current Roberts court,
which he described as a 'right-wing phalanx...guided by no judicial
or political principle at all, but only by partisan, cultural, or
perhaps religious allegiance'. In the New York Review he published a
memorable destruction of the 2010 Citizens United decision, which
applied the concept of freedom of speech to allow corporations
unlimited spending on political campaign advertising, and a
convincing argument in favour of 'Obamacare' and its requirement that
people have health insurance. He was attacked, often derided, from
the right. Bork called him a 'liberal moral relativist', and the New
York Review would often run long criticisms of his articles by
Harvard professor Gerald Fried, which Dworkin would then dissect in
rebuttal. But Dworkin's principled stances earned the respect, if not
agreement, of many on the right. Walter Olson, of the Cato Institute,
wrote 'over decades of intra-left legal debate, he took the better
side—arguing for the importance of individual rights, free speech,
and the integrity of law as a discipline in itself'.

Ronald Myles Dworkin
was born in Providence, Rhode Island 11 December 1931. His parents
divorced when he was a baby, and his mother raised three children by
teaching piano. He won a scholarship to Harvard, and after graduating
went to Magdalen College, Oxford as a Rhodes Scholar. His final
examination paper was largely critical of the theory of legal
positivism, as propagated by H.L.A. Hart, Oxford's Chair of
Jurisprudence. Hart saw justice embodied in adherence to the law's
system of rules, not requiring the perspective of morality. As it
happened, Hart was called in to be one of the reader's of Dworkin's
exam, which he passed with highest marks. In 1969, when Hart retired,
he nominated Dworkin as his successor to the Chair, and cited
passages from that exam in his welcoming speech. They also provided
the basis of his collection, Taking Rights Seriously (1977), in which
he took apart not only Hart's Concepts Of Law but John Rawls' A
Theory Of Justice. Dworkin argued that the law needed to be
interpreted to provide justice, rather than relying on a black and
white answer, because, strictly speaking, both parties in a dispute
might well be 'right' to a greater or lesser degree.

After taking his Oxford
exams, Dworkin returned to Harvard to complete another law degree,
and then clerked for Judge Learned Hand, of the US Court of Appeals,
one of America's greatest jurists. In a move he came to regret, he
then turned down an offer to clerk for the Supreme Court justice
Felix Frankfurter, instead joining the prestigious New York firm of
Sulolivan and Cromwell. He had married Betsy Ross, whom he met while
clerking for Hand, with whom they spent one of their first dates, and
with the arrival of twins he found the travel demands of the job too
pressing, and in 1962 took a professorship at Yale. He added the
Oxford post, but in 1975 turned down Harvard and joined the faculty
at New York University, helping to build its law school into one of
the nation's best. Eventually, he moved to University College,
London, and split time between London, where he kept a flat in
Belgravia, and New York, with a colonial news house just off
Washington Square. His summers were spent on Martha's Vineyard.

Dworkin's most
influential book was Law's Empire (1986), which expounded his own
theory of law, while in Sovereign Virture he offered a notion of
society's parallel needs to allow people freedom to succeed while
cushioning them against failure; that although all people were equal
under the law, the law needed to realise that all people were not
equal (2000). His books, like his essays, moved between the abstract
principles of law, and analyses of contemporary legal issues. In
Life's Dominion (1993) he examined legal arguments about both
abortion and euthanasia, and A Badly Flawed Election (2002) took
apart the Supreme Court's Bush v Gore decision. Justice For Hedgehogs
(2011), with its title recalling Isiah Berlin, was his attempt to mix
all his philosophy into one field theory, and a 16th book,
Religion Without God is forthcoming.

Betsy died in 2000, and
Dworkin married Irene Brendel, the ex-wife of his friend, the pianist Alfred. He
died of cancer, and is survived by his second wife, and his son and
daughter from his first marriage.

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